Sub Area Manager, Wcl. Ballarpur ... vs Smt. Kalawatibai Ramakant Nishad ...
2017 Latest Caselaw 3251 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR
                               FIRST APPEAL NO. 136/2008


          1.       Sub Area Manager,
                   Wester Coalfields Ltd., Ballarpur,
                   Sub-Area, Ballapur.

          2.       The Project Officer,
                   Ballarpur Open-Cast Mines, W.C.L.
                   Sub-Area, Ballarpur, Dist. Chandrapr.

                                                                       APPELLANTS
                                        VERSUS

          1.       Smt. Kalawatibai Ramakant Nishad,
                   Aged : Adult,
          2.       Rahul s/o Ramakant Nishad, Minor,
                   Through G.A.L. Respondent No.1.

Both R/o Ambedkar Ward, Ballapur, Dist. Chandrapur.

3. Rajkumar Tripathi, Contractor, Subhash Ward, Ballapur, Dist. Chandrapur.

RESPONDENTS

Shri A.M. Ghare Advocate for appellant Smt. Kalawatibai Ramakant Nishad Adv. for respondent

CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI,J DATED : 15th JUNE 2017

ORAL JUDGMENT

1. This appeal challenges the judgment and award

dated 22/11/2004 passed by the learned Commissioner,

under Workman Compensation Act 1923 in W.C.A. No.

136/2008, thereby directing the appellants and

respondent no.3 to pay jointly and severally the

compensation amount of Rs. 55,055/- to Respondent No. 1

and 2 within a period of one month from the date of

order. It is stated that amount of Rs. 55,055/- was the

balance amount of compensation, as the amount of

Rs.1,67,655/- was already deposited in the Court.

2. The only point raised for consideration in

this appeal is whether trial court was justified in

imposing the 25% penalty on the amount of

compensation?. According to learned counsel for the

appellant, whatever amount of compensation, was

calculated by the appellant and which was to the tune

of Rs. 1,67,655/- was already deposited by the

appellant in the Court on 27/2/2005. Only balance

amount of Rs. 55,055/-, remained to be deposited. It is

submitted that under Section 4(A)(3)(b) of the

Employees Compensation Act 1923, only when the notice

is issued to the employer and he commits a default in

payment of the compensation and there was no

justification for the delay, the Commissioner can

direct the employer to pay further sum not exceeding

50% of the amount of arrears and interest by way of

penalty. The Proviso thereto further lays down that the

order of payment of penalty shall not be passed under

clause-B without giving a reasonable opportunity to the

employer to show cause why it could not be passed. In

the instant case, it is submitted that no such

opportunity was given to the appellant as to why such

order of penalty shall not be passed. It is urged that,

as the penalty can be leviable only upon passing of the

order by learned Commissioner determining the liability

and after giving show cause notice as contemplated

under section 4(A) 3(b) of the Act, the imposition of

25% penalty in the instance case, is not at all legal

and hence liable to be set aside. In this respect

reliance is placed by learned counsel for the appellant

on the decision of the Apex Court in the case of

[Vedprakash Garg V/s Premidevi, 1997 (8) SCC 1] wherein

it was held that where the employer does not discharge

his liability of paying compensation amount within the

period of one month, from the date of order of the

learned Commissioner, the liability to pay penalty on

the amount of compensation arises.

4. In this case, the order is passed by the

learned Commissioner on 22.11.2003. Thus the amount

became due payable on 22.12.2004. Only if the employer

has failed to pay the said amount after the period of

one month from the date of this determination, then the

penalty would have become payable by the employer,

subject to further satisfaction about the delay, after

receiving show cause notice, being not explained

properly.

5. In this view of the matter, the order of the

Commissioner imposing 25% penalty on the appellant

without waiting for further period of one month after

the passing of the order and without being satisfied

that no sufficient cause is made out for the delay,

cannot be sustained and therefore liable to be quashed

and set aside. It is so, particularly keeping in mind,

the fact that the appellant has already deposited the

substantial amount of Rs. 1,67,655 in the Court.

In view thereof, appeal is partly allowed and

order of imposing 25% penalty on the amount of

compensation as passed by the Commissioner is quashed

and set aside.

If any amount is already deposited by the

appellant towards 25% penalty, as awarded by

Commissioner, the appellant is entitled to withdraw the

same, with interest accrued thereon.

JUDGE Nandurkar